Wakaalah (Agency or Power of Attorney)

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November 9, 2009

1) Literal Definition

Wakaalah is an Arabic word from the scale of ‘Tafeel’. It means to take care of, to look after. Allah Ta’ala has 99 qualities. One is al-Wakeel as He takes care of every affair of every creature till death.

Shar’ee Definition

‘To appoint another person in one’s position in a permissible and known transaction.’ (Raddul Mukhtar vol.5 pg.510; HM Sa ‘eed)

The two key points in the definition are:

1) ‘To appoint somebody (to take charge of) in one’s place

2) In a permissible and known transaction

Emphasis is on jaaiz (permissible) – Wakaalah in an impermissible act is not recognised in Shari’ah – (Ma’loom) (known). Majhool (unknown) leads to naza’a (dispute). Allah Ta’ala says, And do not dispute…

Wakaalah is permissible and proven from two prime sources of the Shari’ah.

2) Sources

a) QUR’AAN

“So send one of you with this silver coin of yours to the town, and let him find out which is the good lawful food, and bring some of that to you.’ (Kahf 19)

The appointment to purchase food was Wakaalah.

b) HADITH

Hadhrat Urwah ibn Abil Ja’d narrates that Rasulullah (Sallallaahu Alayhi Wasallam} gave him one Dinaar to purchase a sheep. He purchased two sheep. He retained one sheep and sold the other for one Dinaar. He, in turn, gave Rasulullah (Sallallaahu Alayhi Wasallam} one sheep (as required) as well as the one Dinaar. Rasulullah (Sallallaahu Alayhi Wasallam} made Du’aa of Barakaat for him. Urwah was very skilful in buying and selling. If he would purchase sand (insignificant), he would make profit from that as well. (Mishkaat pg.254; Qadeemi, with reference of Bukhari)

The appointment to purchase sheep was Wakaalah. In view of the aforegoing, the Fuqahaa ruled:

‘Whatever transaction may be carried out by the person in Shari’ah, he may appoint an agent (to conduct the transaction for him). ‘ (Hidaaya; Chapter of Wakaalah)

3) The Need for Wakaalah

In a person’s life, there are many things that a person is unable to do himself, due to various reasons. He may not have the necessary skills to do it himself, for example, business, hiring, etc. or he is busy, so he has to seek another person’s assistance. Or it may be that the work is so extensive and involved that it is beyond the capacity of one person to do it, so he has to share the work with someone else. Therefore, the Shari’ah grants permission for Wakaalah.

4) Role Players

Muwakkal (Appointer) – original person who delegates the responsibility.

Wakeel (Agent) – person upon whom the responsibility has been delegated and accepts it.

Muwakkal bihi – delegated responsibility.

For example, Zayd wants to purchase a watch but he does not know how to recognise a good watch. He requests Umar, who has experience in watches, to purchase a good watch on his behalf for R250. Umar agrees to purchase the watch for Zayd. So, Zayd is the Muwakkil and Umar is the Wakeel and the responsibility to buy the watch is Muwakkil bihi.

5) Procedure of Contract

Proposal and acceptance – verbal acceptance is not necessary but the Wakaalat will be rejected if rejected. (Shaami)

For example, someone requests another person to do some work for him, and he responds that he will do it, then Iejaab and Qubool has been made. But, if the person does not respond but commences the work, then he has become his Wakeel. However, if he refuses, then that is his right.

6) Conditions

Generally, in Fiqh the Fuqahaa discuss the Ahliyyah (qualifications) to carry out any particular act and generally, there are four qualifications: a) Muslim, b) Free, c) Sane, d) Adult

In Wakaalat, the only condition of qualification is to be sane. That means an insane person cannot be a Muakkil or Wakeel. Being a Muslim is not necessary. The Muakkil or Wakeel or one of the two may be a non-Muslim. To be a free person is also not necessary. A slave who is granted permission from his master may be a Muwakkil or Wakeel. To be an adult is also not necessary. A minor who has reached an understandable age may be a Muwakkil or Wakeel in a matter that is of benefit to him/her, for example, accepting a gift, etc. If there is a possibility of loss, for example, buying, selling, hiring, etc. then he/she may be Muwakkil or Wakeel only with the permission of his guardian.

The secondary condition is that the Wakeel must do the work according to the instructions of the Muwakkil. If he does anything against the instructions of the Muwakkil, then he will be responsible for it himself. For example, Zayd appointed Umar to purchase half a kilogram of meat but Umar purchased one kilogram. Or Zayd tell Umar to purchase apples, but he purchases grapes. Zayd instructs Umar to purchase a roll of cotton, but he purchases polyester. So Zayd can refuse these things as Urnar did not carry out his instructions. Similarly, if government officers or employees act against the instructions of the government or employer, and there are harms, then they (employees) are liable for it, not the government or employer.

7) Attribution of Wakaalat

‘And the transaction made by the agent is of two types’. (Hidaaya)

‘Every transaction represented by the Wakeel himself, like selling & buying, hiring, etc., will be attributed to the Wakeel, not the Muwakkil. Therefore, any claim arising from buying, selling and hiring will rest with the agent and not the Muwakkil. ‘ (Hidaaya)

The Wakeel will hand over the purchased item (in Buyoo) and take possession of the Saman (amount – in Shiraa) and, he will demand the amount (in the case of him being a seller) and take possession (of the purchased item) and if there is a deficiency (in the purchased item if he is a purchaser) and he (the purchaser) will dispute with him if he (the Wakeel) is a seller. (Hidaaya)

And if the Muwakkil demands payment from the purchaser, he (the purchaser) may refuse him that. (Hidaaya)

‘But if the purchaser pays for it (the item) to the Muwakkil then it will not be permissible for the Wakeel to claim the amount for the second time (from the purchaser). ‘ (Hidaaya)

And every transaction attributed to the Muwakkil, for example, Talaaq, Khul’a and Sulah on behalf of Dam-e-Amad. Verily its effects will be binding upon the Muwakkil, not the Wakeel. The Wakeel (deputy) will not be responsible for paying Mahr, neither will the bridegroom’s representative be responsible for surrendering the bride since the Wakeel is only a messenger. (Hidaaya)

If Zayd delegates Umar to buy or sell, or to take or give out on hire, then even without taking the name of the Muwakkil, he can still buy and sell, or to take or give out on hire, or employ staff. If Zayd appoints Umar as his Wakeel to give a gift or pursue a lawsuit, then if Umar gives anything belonging to Zayd as a gift, or pursues a lawsuit on his behalf, then in all these cases, the Wakeel (Umar) must make it specifically clear that he is acting as Zayd’s agent. (Commercial Law of Islam – Mawlana Mujeebullah Nadwi part 7)

8) General Rules and Principles on Wakaalah

Whosoever appoints any person to purchase anything, it is necessary to specify the item, its quality and price. But if the appointment is general (then it is not necessary), for example, a person says, ‘Buy forme whatever you think.’ (Qudoori)

‘According to Imaam Abu Hanifa, it is not permissible for the agent of buying and selling to deal with his father, grandfather, child, grandchild, his slave and Mukatab. Imaam Abu Yusuf says it is permissible to deal with all of them besides the slave and the Mukatab according to the market related value.’ (Qudoori)

‘According to Imaam Abu Hanifa, it is permissible for the agent of selling to sell for any price, benefit or loss. According to Imaam Abu Yusuf and Imaam Muhammad (RA), it is not permissible for the agent of selling to sell with such a loss that is not generally accepted. But it is permissible for the agent of purchasing to purchase for a market related value or a higher value whether acceptable or not acceptable to people. A loss is defined as that which does not enter the evaluation of the evaluators.’ (Qudoori)

9) Types of Wakaalah (Agency)

Wakaalat bil khusoomah – Agency in a dispute

If someone wants to bring a civil case before an Islamic court, and he is not competent to put forward his case himself, then he can appoint a Wakeel to act for him. But it should be remembered that, as far as is possible, a person should not put his case for judgment before a non-Muslim court on the basis of non-Muslim laws, nor should he become the Wakeel of any Muslim who is brining a case in terms, of non-Muslim laws before a non-Muslim court.

The noble Qur’aan has called the person who applies for or, has an application brought, or presents an application for judgment in terms of non-Muslim laws a Dhaalim, a Faasiq and even a Kaafir. ‘And whoever does not judge according to what Allah Almighty has sent down, those are the ones who are infidels. ‘

Wakaalat bil hudoor wal qisaas – Agency in seeking capital punishment

If someone wants to bring a criminal case, for example, he is falsely accused, then he may appoint somebody on his behalf.

If the Muwakkil commits some criminal offence, then the punishment will be inflicted on the Muwakkil himself. He cannot delegate someone to take his punishment, nor does the punishment have anything to do with his Wakeel. If he killed someone, it is he himself who will be put to death, or will have to pay Diyat.

10) Miscellaneous

The Wakeel is an Ameen (entrusted person)

The Wakeel buys something for the Muwakkil, or collects some payment on his behalf, and then by chance the thing he has bought falls from his hand and breaks, or gets lost, or the money he has collected gets lost. If this did not happen deliberately or out of negligence, then he cannot be held liable for the loss, as his position is of an Ameen, and an Ameen is not liable for loss of an Amaanat. For example, he bought a sugar bowl and, while bringing it, he gets knocked down and the sugar bowl breaks. Or he is bringing some money and someone cuts his pocket and steals it. In these cases, he is not liable for the loss. But if he was walking in the roadway instead of the pavement, then he will be held liable as he was negligent.

11) Termination

‘And an Agent may be terminated by the appo inter unless the termination effects the right of another person.’ (Hidaaya)

For example, someone delegates someone to buy a roll of cloth for him. Then, before he buys it, he tells him not to buy it. Now he does not have the right to buy it. In the same way, someone makes some person his Wakeel to perform his son’s Nikah. Then, before he performs it, he tells him not to do so. This is his right. Also, if before doing the work, the Wakeel excuses himself, it is his right. But if the Wakeel is doing some work involving credit, then if terminating the Wakaalah will involve infringement of some person’s rights, or harm to some person, then it may not be terminated.

‘And if the dismissal note has not reached him, he may continue the deputation until it reaches him.’ (Hidaaya)

And the deputation is void by the death of the appointer or his insanity. Or when the deputy dies or goes insane.

Conclusion

1) The discussion is based on the broad principles of Wakaalah. We have not discussed the Juziyyaat (branches) flowing from the broad principles.

2) We have limited the discussion on Shar’ee issues and did not engage in the secular aspects of Wakaalah as we need to study the secular issues before issuing Shar’ee rulings on them.